People v. Strong CA2/5 ( 2023 )

Filed 3/23/23 P. v. Strong CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
THE PEOPLE, B322689 / F079628
Plaintiff and Respondent, (Kern County Super.
Ct. No. BF169555A)
v.
DANTE J. STRONG,
Defendant and Appellant.
APPEAL from a judgment of the Superior Court of Kern
County, Kenneth C. Twisselman, II, Judge. Affirmed and
remanded.
James S. Thomson, under appointment by the Court of
Appeal, for Defendant and Appellant.
Xavier Becerra and Rob Bonta, Attorneys General, Lance
E. Winters, Chief Assistant Attorney General, Michael P. Farrell,
Assistant Attorney General, Louis M. Vasquez and Jennifer
Oleksa, Deputy Attorneys General, for Plaintiff and Respondent.
___________________________
Defendant Dante Strong appeals from a judgment of
conviction for involuntary manslaughter of Raymond Martinez
and attempted voluntary manslaughter of Richard Martinez.1
Defendant argues multiple evidentiary, instructional, and
sentencing errors require reversal of the judgment. We remand
for resentencing pursuant to recent statutory amendments that
govern sentencing of youthful defendants. We otherwise affirm
the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
On August 26, 2017, defendant and his girlfriend, Blu
Tuch, were celebrating her birthday in the city of Mojave. That
evening, Tuch posted on Instagram, “Who’s got white girl and
weed for sale?”2 The post was visible to any of her followers.
Approximately one hour later, Raymond responded to
Tuch’s post via direct message and told her he “got the tree,”
meaning he had marijuana for sale. Over the course of the night
and into the next day, Tuch and Raymond worked out the
logistics of the transaction through a series of Instagram
messages. After Tuch suggested she would “throw a little more
money in for gas,” Raymond agreed to drive to Mojave to meet
with Tuch and her boyfriend at the Fastrip Gas Station and
convenience store parking lot. Raymond agreed to sell them a
quarter pound of marijuana for $700. Tuch sent Raymond a
1 To avoid confusion, we refer to the Martinez family
members by their first names. We intend no disrespect.
2 White girl is the street name for cocaine.
2
video of a large amount of cash to show she had the funds while
Raymond sent Tuch a video of a bag of marijuana.
1. The Shooting
On August 27, 2017, Raymond drove to Mojave from
Lancaster and arrived at approximately 7:30 p.m. His father
Richard and his friend Jeremiah Flowers went with him.
Richard was extremely intoxicated and slept in the back seat
during the drive.
Raymond notified Tuch when they arrived at the Fastrip
parking lot. When Tuch and defendant approached Raymond’s
car, Flowers, who had been sitting in the passenger seat, moved
to the backseat with Richard. The events occurring outside the
car were largely captured by surveillance video maintained by
the businesses in the area. The events within the car were
disputed.
According to Flowers, defendant got into the passenger seat
of Raymond’s car and introduced himself. He then asked to see
the product and Raymond complied. Almost immediately,
defendant brandished a gun in his right hand. Flowers did not
see defendant pull out any money. Richard “jumped up across”
from the back seat and struggled for the gun, which discharged.
Flowers could not tell who, if anyone, had been hit. Richard
testified he woke up suddenly when he heard someone say, “give
me that shit” and saw a gun pointed at Raymond. He could not
otherwise recall details of what happened after he struggled with
defendant over the gun, including his pursuit of defendant
outside of the car.
According to defendant, he did not immediately brandish
the gun. He instead brought out money, intending to negotiate a
lower price for the marijuana. Raymond grabbed the money from
3
his hand while Richard attacked him from the backseat.
Defendant pulled his gun out only to protect himself and he
fought with Richard for it. The gun discharged during the
struggle.
Defendant took Raymond’s key from the ignition and ran
from the car. Richard pursued defendant, and Raymond
followed. Flowers, in shock, stayed in or near the car for “[a]
minute or two.” He heard two more gunshots and then Raymond
staggered back. Raymond told Flowers to call the police because
he had been shot. Flowers could see Raymond was bleeding from
his throat. Although Flowers attempted to help him, Raymond
died at the Fastrip parking lot. Raymond had a gunshot entrance
wound on the front of his neck, but no exit wound. A bullet was
recovered from his upper right back area during the autopsy.
Richard, in the meantime, continued to pursue defendant.
Defendant attempted to drive away in his Honda but it stalled,
allowing Richard time to break the passenger window. He then
began to punch Tuch, who was sitting in the passenger seat.
Defendant got out of the driver’s side of the car and shot Richard
to protect Tuch. Defendant and Tuch ran across the street. Once
Richard stopped his pursuit, defendant ran back to his car and
picked up Tuch. Flowers saw defendant and Tuch leave in a
black Honda.
Richard made his way back to Raymond’s car, where
Flowers was trying to help Raymond. Richard was later taken to
the hospital, where he remained for two weeks. He suffered one
gunshot wound to his face, an entry wound on his chest, and a
bullet lodged in his back; his mouth was wired closed and his lips
were glued shut; he had to be intubated to be able to eat and
breathe; and his lungs had to be drained. At trial, Richard
4
identified defendant as the person who shot him but did not
remember many details of the incident, explaining he had been
intoxicated. He testified he woke up in the hospital to learn that
his son was dead.
Defendant and Tuch were apprehended nearby by three
Kern County sheriff’s deputies. The deputies received a
description over the radio of a dark colored Honda, a black male
with dreadlocks, and a white female. Almost immediately, the
deputies saw a vehicle with passengers matching those
descriptions and turned on their lights and sirens. Defendant,
who was driving, attempted to elude the police. He ultimately
came to a stop on the grassy area of a mortuary, when he became
stuck on top of a cinderblock wall.
The deputies found a silver .38-caliber semiautomatic
handgun approximately five or six feet from the passenger side of
defendant’s car. They also recovered two sets of keys from
defendant’s car. Defendant admitted at trial the gun was his and
he threw it out of the car window because he did not want to be
caught in possession of it and possibly be shot by the police as a
result. The police recovered a .38-caliber unfired round, and two
.38-caliber shell casings at the Fastrip parking lot. The police did
not recover any money at the scene nor in Raymond’s or
defendant’s car. They recovered two bags of marijuana in
Raymond’s car.
2. The Police Investigation
In an interview the following morning, defendant initially
denied the gun was his. He stated he and Tuch met the seller in
a parking lot and when he took out the money to make the
purchase, someone “pulled a gun to [his] head.” The remainder of
his statement tracked his testimony at trial.
5
When the detectives challenged his account, stating the
incident was captured on surveillance video and that Tuch had
provided a different story, defendant admitted he had bought the
gun the previous month. He claimed he brandished it only after
Raymond grabbed his money and Richard grabbed his neck from
the back.
On August 31, 2017, four days after the shooting, officers
obtained a warrant for the records from Tuch’s Instagram
accounts. They received her digital records from Facebook which
included the Instagram messages between Tuch and Raymond
regarding the proposed transaction.3 The records from Facebook
also contained a video Tuch posted on August 26, 2017, of
defendant holding a beer in one hand and hitting himself in the
head with a gun in his other hand while reciting lyrics from a
song called “Let Someone Try Me.” At trial, defendant admitted
he owned the gun in the video and indicated it was the same one
he brought to the drug transaction. Another video showed Tuch
with a handgun. That video was also played for the jury.
3. The Trial4
An information charged defendant with first degree murder
of Raymond (count 1; Pen. Code, § 187, subd. (a)), attempted first
degree murder of Richard (count 2; §§ 187, subd. (a), 664), and
3 Facebook owns Instagram.
4 The People moved to sever Tuch’s and defendant’s trials on
the ground their statements were subject to the rules specified in
People v. Aranda (1965) 63 Cal.2d 518 and Bruton v. United
States (1968) 391 U.S. 123. The two were prosecuted separately.
Tuch’s trial was to follow defendant’s, but the record does not
disclose how the charges against her were resolved.
6
attempted robbery (count 3; §§ 212.5, subd. (c), 664).5 It was
alleged as to count 1 that the murder was committed during the
commission of a robbery (§ 190.2, subd. (a)(17)), and as to all
counts that defendant personally discharged a firearm causing
great bodily injury or death (§ 12022.53, subd. (d)).
The prosecution’s theory at trial was that defendant did not
bring any money to the drug deal and that he intended to rob
Raymond. The prosecution presented evidence that defendant
lacked funds to buy the amount of marijuana that Tuch had
requested from Raymond because he was unemployed. The
prosecution sought a conviction either under a theory of
premeditation and deliberation or under the felony-murder rule
with robbery as the predicate offense.
Defendant testified at trial that it was Raymond who
sought to rob him. His testimony at trial generally tracked his
confession to the police: Raymond grabbed the money from his
hand; Richard grabbed him from behind; defendant pulled the
gun from his pocket to protect himself; and it discharged during
the struggle. Defendant then got out of the car, took Raymond’s
keys to prevent them from following him, and ran to his own car.
Richard followed him, punched out the passenger side window,
and began to hit Tuch. Defendant fired two shots at him to
protect her.
Defendant refuted the prosecution’s theory that he lacked
the funds to buy the marijuana. Defendant testified he sold
drugs, primarily Xanax, marijuana, and cocaine, to make money.
He testified he was unable to supply Tuch with the drugs she
5 All further undesignated statutory references are to the
Penal Code.
7
wanted for her birthday because his supply was running low and
his regular dealer was out of town. Defendant also testified he
made money by working for an automotive detailing company
and was “paid under the table” for his work there. Defendant
lived with his older brother, who testified he allowed defendant
and Tuch to live with him rent free. The older brother also
frequently checked to see if defendant needed anything, including
money. Defendant testified a friend had contributed $150 for the
marijuana purchase and defendant’s brother had given him $100
the previous day. The rest of the money that he brought,
approximately $300, was his own. (The “deal” was for $700 but
defendant only brought $550.) Defendant testified the Fastrip in
Mojave was one of the busiest places in the city and he believed it
would be “pretty dumb” to attempt a robbery there during
daylight hours.
The jury acquitted defendant of the murder, attempted
murder, and attempted robbery charges. They found defendant
guilty of the lesser-included offense of involuntary manslaughter
(§ 192, subd. (b)) in count 1 and the lesser-included offense of
attempted voluntary manslaughter (§§ 192, subd. (a), 664) in
count 2. The jury further found true the firearm enhancement
allegations pursuant to subdivision (a) of section 12022.5, rather
than subdivision (d), of section 12022.53 for both counts.
The trial court sentenced defendant to 14 years in state
prison, comprised of the low term of two years for the involuntary
manslaughter count plus the high term of 10 years for the
firearm enhancement under section 12022.5, subdivision (a) and
a consecutive sentence of one-third the middle term of three years
(one year), enhanced by one year for the attempted voluntary
manslaughter count and its attendant firearm enhancement.
8
Defendant filed a timely notice of appeal.
DISCUSSION
1. The Trial Court Properly Admitted Blu Tuch’s
Instagram Records Into Evidence Notwithstanding
the Government’s Failure to Strictly Comply with the
Electronic Communications Privacy Act
Defendant contends the trial court erred when it admitted
Blu Tuch’s Instagram records into evidence because the People
violated the Electronic Communications Privacy Act (ECPA;
§ 1546, et al.) by failing to strictly comply with its notice
requirements. The People counter that defendant lacked
standing to raise a violation of the ECPA, and even if he had
standing, there was no error because the violations were merely
technical. We begin our discussion with an overview of the
relevant provisions of the ECPA.
a. The ECPA
Among other things, the ECPA restricts the State’s ability
to “[c]ompel the production of or access to electronic
communication information from a service provider.”6 (§ 1546.1,
6 “ ‘Electronic communication information’ means any
information about an electronic communication or the use of an
electronic communication service, including, but not limited to,
the contents, sender, recipients, format, or location of the sender
or recipients at any point during the communication, the time or
date the communication was created, sent, or received, or any
information pertaining to any individual or device participating
in the communication, including, but not limited to, an IP
address. ‘Electronic communication information’ does not include
subscriber information as defined in this chapter.” (§ 1546,
subd. (d).) The parties do not dispute that Instagram (and
9
subds. (a)(1).) Such information may be gathered only pursuant
to a warrant, wiretap order, subpoena, or other specified means.
(§ 1546.1, subd. (b).)
“Except as otherwise provided in this section, any
government entity that executes a warrant, or obtains electronic
information in an emergency pursuant to Section 1546.1, shall
serve upon, or deliver to by registered or first-class mail,
electronic mail, or other means reasonably calculated to be
effective, the identified targets of the warrant or emergency
access, a notice that informs the recipient that information about
the recipient has been compelled or obtained, and states with
reasonable specificity the nature of the government investigation
under which the information is sought. The notice shall include a
copy of the warrant or a written statement setting forth facts
giving rise to the emergency. The notice shall be provided
contemporaneously with the execution of a warrant, or, in the
case of an emergency, within three court days after obtaining the
electronic information.” (§ 1546.2, subd. (a)(1).)
Notice to the identified target under section 1546.2 may be
delayed if the government entity submits “a request, supported
by a sworn affidavit for an order delaying notification and
prohibiting a party providing information from notifying any
other party that information has been sought. The court must
issue the order if it determines that there is reason to believe
that notification may have an adverse result, but only for the
period of time that the court finds there is reason to believe that
notification may have an adverse result, and not for more than 90
Facebook, its parent) is an electronic service provider within the
meaning of the ECPA.
10
days.”7 (§ 1546.2, subd. (b)(1).) “The court may grant extensions
of the delay of up to 90 days each on the same grounds as
provided in paragraph (1).” (§ 1546.2, subd. (b)(2).) “Upon
expiration of the period of delay of the notification, the
government entity shall serve upon, or deliver to by registered or
first-class mail, electronic mail, or other means reasonably
calculated to be effective as specified by the court issuing the
order authorizing delayed notification, the identified targets of
the warrant or emergency access, a document that includes the
information described in subdivision (a), a copy of all electronic
information obtained or a summary of that information,
including, at a minimum, the number and types of records
disclosed, the date and time when the earliest and latest records
were created, and a statement of the grounds for the court’s
determination to grant a delay in notifying the individual.”
(§ 1546.2, subd. (b)(3).)
“Any person in a trial, hearing, or proceeding may move to
suppress any electronic information obtained or retained in
violation of the Fourth Amendment to the United States
Constitution or of this chapter. The motion shall be made,
determined, and be subject to review in accordance with the
7 “An ‘adverse result’ means any of the following:
(1) Danger to the life or physical safety of an individual.
(2) Flight from prosecution.
(3) Destruction of or tampering with evidence.
(4) Intimidation of potential witnesses.
(5) Serious jeopardy to an investigation or undue delay of a
trial.” (§ 1546, subd. (a).)
11
procedures set forth in subdivisions (b) to (q), inclusive, of Section
1538.5.”8 (§ 1546.4, subd. (a).)
b. Proceedings Below
Prior to trial, defendant moved to exclude the electronic
records obtained from Tuch’s Instagram accounts. Among his
other arguments to the trial court, defendant challenged the
sufficiency of the warrant application and delay request under
the ECPA. The People argued that Tuch received timely notice of
the search because the fruits of the warrant, if not the warrant
itself, were provided to Tuch’s attorney.
At the March 4, 2019 evidentiary hearing, Kern County
Sheriff’s Department Detective Victor Garcia explained Tuch
informed him shortly after the shooting that her Instagram
“vanity names” or Instagram handles were Blujazminn (with two
n’s) and Blujazminnnn (with four n’s). Her Instagram
communications with Raymond were conducted through the
Blujazminn account. On August 31, 2017, Garcia obtained a
warrant for all messages, photographs, videos, and other
information regarding those two Instagram accounts for the
period between May 1, 2017 and August 31, 2017.
Detective Garcia explained he requested and received one
90-day delay order under section 1546.2, subdivision (b), which
allowed the People to delay notifying Tuch of the search until
November 29, 2017. On November 2, 2017, approximately one
8 Section 1538.5 establishes a single method for the
suppression of evidence and the return of property in particular
proceedings and at particular stages of the proceedings. “The
purpose of the legislation is to permit the issue to be raised at an
early stage, and to require the defendant to raise it at that stage.”
(13 Witkin, Cal. Crim. Law (4th ed. 2022) Illegal Evidence § 443.)
12
month before the 90-day period expired, the District Attorney’s
Office provided Tuch’s attorney (but not defendant’s attorney)
with two compact discs containing all the electronic records that
had been taken from Tuch’s Instagram accounts, including 17
pages of private messages between Tuch and Raymond from the
Blujazminn account. The People did not include a copy of the
warrant or the 90-day delay order in the discovery disclosure.9 It
was undisputed that Tuch did not receive a copy of the warrant
until February 2019, approximately 18 months after the warrant
was issued.10
Detective Garcia testified he downloaded the information
from Facebook, wrote a report, and provided the information to
the District Attorney’s Office. Garcia believed the ECPA notice
requirements were fulfilled by the District Attorney’s disclosure
to Tuch’s attorney.
Defendant argued that, even though the prosecution had
provided Tuch with the compact discs within the notice period,
the People had violated the ECPA because Tuch had not timely
received a copy of the warrant or the delay order. After
9 Defendant does not contend he was entitled to notice from
the People of the search of Tuch’s electronic records.
Nevertheless, defendant received notice of the warrant before
Tuch did. On December 12, 2018, defendant’s attorney requested
a copy of the warrant and the prosecutor sent it to him on
December 14, 2018. Tuch received a copy of the warrant
approximately two months later.
10 The prosecutor affirmed at defendant’s hearing that Tuch
was scheduled to appear the next day for trial setting and that in
her separate proceeding, she had not yet brought a motion to
suppress her Instagram records.
13
considering arguments from both attorneys, the trial court denied
defendant’s motion to quash, finding “there was notice given to
Ms. Tuch’s attorney within the time allowed by the 90-day delay.
And it was reasonably calculated to be effective on putting her,
through her attorney, on notice that information about her had
been obtained. Because the CDs are right there, showing her
that this information had been obtained. And the reasonable
specificity concerning the nature of the government investigation
would be the [criminal] charges in the case that her attorney was
representing her on. And she would be reasonably on notice that
the government investigation was seeking this information as it
relates to these criminal charges against her.” The court further
found the notice provision was one that was intended to play a
central role in the statutory scheme but the purpose of the
provision was achieved in spite of this error.
c. The Trial Court Properly Denied Defendant’s
Motion to Quash Under the ECPA
Defendant contends the trial court erred when it denied his
motion to quash because the District Attorney failed to comply
with the ECPA’s notice requirements. It is undisputed the
District Attorney did not provide Tuch with a copy of the warrant
until February 2019, approximately 18 months after the warrant
was executed. Nor did the District Attorney serve her with a
copy of the 90-day delay order. Section 1546.2, subdivision (b)(3)
required either copies or summaries of those documents to be
timely served on Tuch. Defendant asserts these violations of the
ECPA notice requirements automatically rendered the resulting
electronic information inadmissible and that the disclosure of
Tuch’s Instagram records as part of the prosecution’s discovery
14
obligations to Tuch was insufficient to satisfy the ECPA. We
disagree.
The standard of review of a trial court’s ruling on a motion
to suppress is well established. “A trial court’s decision to admit
or exclude evidence is reviewed for abuse of discretion, and it will
not be disturbed unless there is a showing that the trial court
acted in an arbitrary, capricious, or absurd manner resulting in a
miscarriage of justice.” (People v. Wall (2017) 3 Cal.5th 1048,
1069.) We defer to the trial court’s factual findings, express or
implied, where supported by substantial evidence. We
independently review the application of the law to the facts.
(People v. Glaser (1995) 11 Cal.4th 354, 362.)
i. The Legislature Rejected Automatic
Suppression
Defendant argues “[t]he history and purpose of the [ECPA]
makes clear that a plain violation of the notice requirement
should result in suppression.” The Legislature decided
otherwise. In initial drafts of the legislation, the following
language was originally proposed for section 1546.4, subdivision
(a): “Except as proof of a violation of this chapter, no evidence
obtained or retained in violation of this chapter shall be
admissible in a criminal, civil or administrative proceeding or
used in an affidavit in an effort to obtain a search warrant or
court order.” (Sen. Bill No. 178 (2015-2016 Reg. Sess.) (Feb. 9,
2015) sec. 1546.4 on p. 7.) This language was stricken in the
August 17, 2015 draft and replaced by the current language in
the statute authorizing “any person” to file a motion to suppress.
(Sen. Bill No. 178 (August 17, 2015) sec. 1546.4, p. 8.) The
Legislature thus declined to create automatic suppression as a
remedy for every violation of the ECPA.
15
ii. People v. Jackson Is Instructive.
Given that automatic suppression is not the rule, we now
consider how a trial court should evaluate a motion to suppress
for a violation of the ECPA. At the motion to quash hearing
below, defense counsel, citing to Judge Caskey’s treatise and
other secondary authorities discussing the ECPA, urged the trial
court to begin its analysis by looking to People v. Jackson (2005)
129 Cal.App.4th 129 (Jackson). (Caskey, Expert Series:
California Search and Seizure (2016 ed.) § 10:20.) The People did
not rely on Jackson but offered no alternative procedure. On
appeal, the parties have reversed their positions — the Attorney
General contends Jackson is instructive while defendant argues
the trial court erred in relying on Jackson. We find the Attorney
General’s current argument more persuasive.
Jackson dealt with the violation of California’s wiretap law
(§ 629.50 et seq.), which, almost identically to section 1546.4,
subdivision (a), states: “Any person in any trial, hearing, or
proceeding, may move to suppress some or all of the contents of
any intercepted wire . . . communications, or evidence derived
therefrom, only on the basis that the contents or evidence were
obtained in violation of the Fourth Amendment of the United
States Constitution or of this chapter. The motion shall be made,
determined, and be subject to review in accordance with the
procedures set forth in section 1538.5.” (Jackson, supra,
129 Cal.App.4th at p. 146, fn. 19, quoting § 629.72.) Like the
ECPA, the wiretap statute examined by Jackson also had the
dual purpose of protecting the privacy of wire and oral
communications, and delineating a uniform basis under which
the interception of these communications may be authorized.
(Jackson, at p. 147.)
16
Jackson presented three questions for a court to consider
when evaluating a motion to suppress evidence for violation of
the wiretap statutes: “(1) Has the defendant established a
violation of a provision of the wiretap law? If not, the motion is
denied. (2) If a wiretap violation has been established was the
provision violated one which ‘was intended to play a central role
in the statutory scheme[?]’ If the provision was not intended to
‘play a central role,’ failing to comply with it will not render
interceptions under the wiretap order unlawful and the motion is
denied. (3) If the provision violated was central to the legislative
scheme was the purpose of the provision achieved in spite of the
error? If the purpose was achieved, the motion is denied. If the
purpose was not achieved, the motion is granted. The analysis of
a suppression motion focuses on violations of the statutory
procedures and not on constitutional violations, because while it
is possible to violate a core principle of the statute without
violating the Fourth Amendment it would not seem possible to
violate the Fourth Amendment without also violating a core
statutory principle.” (Jackson, supra, 129 Cal.App.4th at p. 149,
fns. omitted].)
We adopt the Jackson three-prong inquiry to evaluate
motions to suppress under the ECPA. Jackson addresses a
similarly worded statute that also focuses on protection of privacy
rights in the electronic capture of information and sets out a
procedure for the search and seizure of private information under
section 1538.5.
Defendant argues Jackson does not apply, but suggests
that if we look to Jackson at all, an affirmative response to the
first two questions ends the inquiry. Jackson disagreed with this
approach. It observed, “Cases involving challenges to traditional
17
searches under section 1538.5 have long applied a ‘harmless
error’ test when considering whether to suppress evidence
because of minor violations of statutory procedures. . . . Even
violations of core requirements of the search procedure such as
the warrant’s failure to describe the place to be searched with
particularity may not result in suppression of the evidence seized
in the search if the People can demonstrate the warrant served
the purpose of the requirement: to prevent a general rummaging
around in a person’s belongings.” (Jackson, supra,
129 Cal.App.4th at p. 152, fn. omitted, citing cases].)
Jackson further explained that a rule premised on strict
compliance would lead to the suppression of relevant wiretap
evidence without advancing a defendant’s legitimate privacy
interest or the interest of society in curbing abuse of electronic
surveillance. (Jackson, supra, 129 Cal.App.4th at p. 148; see also
United States v. Chavez (1974) 416 U.S. 562, 575 [“suppression is
not mandated for every violation” of analogous federal wiretap
statute]; cf. People v. Head (1994) 30 Cal.App.4th 954 [no
suppression for late filing of search warrant return].) Defendant
has provided no persuasive authority or argument to counter
Jackson’s reasoning.
iii. The Purpose of the Notice Requirements Was
Achieved Despite the Noncompliance.11
Applying Jackson’s three-step inquiry, we now address
whether the trial court properly denied the motion to quash. The
trial court answered Jackson’s first two questions in the
11 In reaching our conclusion, we need not, and do not,
address the People’s threshold argument that defendant lacks
standing to move to quash the admission of Tuch’s Instagram
records in his trial.
18
affirmative and neither party disputes those determinations. We
therefore limit our discussion to the third question — whether
the purpose of the notice requirements was achieved in spite of
the error.
By its express language, section 1546.2, subdivision (b)(3),
aims to provide the target of the warrant with prompt notice of
(1) what information has been compelled or obtained, (2) the
nature of the government investigation under which the
information is sought, and (3) a statement of the grounds for the
court’s determination to grant any delay in notifying the target.
(See also Legis. Counsel’s Dig., Sen. Bill No. 178, Stats. 2015
(2015-2016 Reg. Sess.).) The ECPA achieves these purposes by
providing the target with a copy of the warrant, a copy of the
electronic information obtained from the warrant, and a copy of
the delay order, or summaries of such information.
Under the facts of this case, the District Attorney timely
provided Tuch with information about what had been sought (her
Instagram account records for Blujazminn and Blujazminnnn
over multiple months in 2017) or obtained (the communications
between her and Raymond and videos including those showing
her and defendant with a firearm,), and the nature of the
investigation (criminal proceedings).12 This information was
served on Tuch’s attorney by way of the discovery disclosures on
12 Defendant argues disclosure of only the fruits of the
warrant would not promptly notify Tuch of the nature and scope
of the warrant to allow her to challenge any overreach before
production of the electronic information. We disagree. Section
1546.2, subdivision (b)(3) expressly allows for delayed notice so
that a challenge to the warrant may only arise after the
information itself has been obtained by the government
19
November 2, 2017, at least three weeks before the expiration of
the 90-day delay order and years before Tuch’s trial, allowing
Tuch to make a timely and informed decision whether to file a
motion to suppress.13
Although Tuch was never served with a copy of the delay
order, Tuch was not prevented from making a timely and
informed decision about moving to suppress the seized evidence.
Under the statute, Tuch would not have known about the delay
order or the reasons in support of a delay until after the 90-day
extension had expired. At that point, she had already received
all the electronic information obtained under the warrant,
allowing her to decide whether to seek exclusion of any particular
record or piece of information. (§ 1538.5, subd. (a)(2) [requiring a
list of “the specific items of property or evidence sought to be
returned or suppressed”].) Defendant makes no effort to explain
how the failure to provide Tuch with a copy of the delay order
subverts the purpose of the notice requirements.
Defendant instead suggests the notice requirements would
incentivize the State to follow the law and increase consumer
trust in data privacy. This point does not advance our inquiry.
Obviously, any statutory mandate is to be followed. When the
13 A section 1538.5 motion to suppress may be made before
trial. It may also be made during trial if the defendant was not
aware of the grounds for the motion before trial. (§ 1538.5, subd.
(h); Levenson & Ricciardulli, Cal. Criminal Procedure (The
Rutter Group Dec. 2022) § 6:7.) The record does not disclose
when or if Tuch’s trial was held. There is no dispute that Tuch’s
trial was to begin after defendant’s 2019 trial and she received
the discovery disclosures in 2017, two years before the trial of
either defendant or Tuch was to start.
20
prosecution does not comply with a key statutory provision, we
then consider whether the purpose of the provision was achieved
nonetheless. Here, we conclude it was.14
2. Tuch’s Electronic Data Was Not Inadmissible
Testimonial Hearsay
Defendant next contends the electronic data obtained from
the warrant, specifically the data denoting the author, date, and
time of Tuch’s Instagram posts and messages, constituted
inadmissible testimonial hearsay. Our Supreme Court
essentially rejected this argument in People v. Goldsmith (2014)
59 Cal.4th 258. In Goldsmith, the defendant received a traffic
ticket for running a red light based on photographs and video
generated by a red light traffic camera. The camera was
operated by a computer, which imprinted on all the photographs
the date, time, location, and how long the light had been red at
the time of the photograph. (Id. at p. 264.) The Supreme Court
explained that information automatically generated by a
computer is not a statement of a person as defined by the
Evidence Code and therefore, does not constitute hearsay. Nor is
that type of testimonial statement that is subject to the
confrontation clause. (Goldsmith. at pp. 274-275; People v. Lopez
(2012) 55 Cal.4th 569, 583 [use of computer printouts at trial did
not violate a defendant’s right to confront and cross-examine the
machine’s operator even where the printout contains no
statement from the operator attesting to the validity of the data
shown].)
14 Defendant does not purport to explain how automatic
suppression of this type of evidence, without a harmless error
inquiry, increases consumer trust in data privacy.
21
Here, Detective Garcia testified to the procedure by which
he submitted the warrant to Facebook: he logged on to a law
enforcement portal maintained by Facebook, he authenticated his
identity by using his Sheriff’s Department e-mail address, he
submitted the required information, and he attached a copy of
the warrant to his request. Facebook sent an e-mail with a link
to Tuch’s Instagram records responsive to the warrant. Facebook
later provided a certificate of authentication that Tuch’s
Instagram records were created in the normal course of its duties.
Garcia testified Tuch’s Instagram records were time- and date-
stamped according to the Universal Time Coordinate, which
Garcia explained is seven hours ahead of Pacific Standard Time.
Like the machine-generated information found in Goldsmith and
Lopez, the author, time, and date data found in Tuch’s Instagram
records are neither testimonial nor hearsay.
To the extent defendant is arguing that there was
insufficient foundation for the admission of the Instagram posts,
defendant himself provided much of the foundation: Defendant
told the detectives Tuch arranged the meeting through her
Instagram account and Raymond sent pictures of the marijuana
to them. They finalized the location and time of the meeting
approximately an hour before they met at the Fastrip parking lot.
At trial, defendant confirmed Tuch arranged for the meeting over
Instagram. He testified as to the date and approximate times of
the relevant Instagram posts. Defendant testified he knew that
Tuch asked to buy marijuana and cocaine in an Instagram post.
He recalled seeing the Instagram messages between Tuch and
Raymond on August 27, 2017. He affirmed that the video of him
holding a beer and a gun was taken “later in the night” of
22
August 26, 2017, or “early in the morning” of August 27, 2017.
He also admitted he owned the gun in the video.
3. The Admission of the Entire Video of Flowers’s Police
Interview Was Harmless Error
Defendant next contends the trial court abused its
discretion when it admitted the entirety of the video-recorded
police interview of witness Flowers (the third person in the
Martinez vehicle) because some parts of the interview were
inadmissible prior consistent statements of a witness pursuant to
Evidence Code section 791.15
At trial, defense counsel sought to impeach Flowers with
statements he made to the police that were inconsistent with his
trial testimony. In particular, Flowers denied he knew anything
about a drug deal or that Raymond asked him to act as “backup.”
This trial testimony directly contradicted his statements to police
that he knew Raymond had set up a drug deal with a woman on
Instagram and Flowers went along “to back him up or
whatever. . . .” On redirect, the trial court allowed the prosecutor
to play the entirety of Flowers’s statement to police over the
defense’s objection.
Defendant’s argument is Flowers’s prior inconsistent
statements, which he concedes are admissible, were all made in
15 Evidence Code section 791, subdivision (a) provides:
“Evidence of a statement previously made by a witness that is
consistent with his testimony at the hearing is inadmissible to
support his credibility unless it is offered after: (a) Evidence of a
statement made by him that is inconsistent with any part of his
testimony at the hearing has been admitted for the purpose of
attacking his credibility, and the statement was made before the
alleged inconsistent statement[.]”
23
the first half of his interview with the police, that is, the first 10
pages of the 21-page transcript. Flowers’s remaining statements
in pages 11 through 21, were consistent with his trial testimony
and were made after the inconsistent statements in pages 1
through 10. Thus, they were not admissible under Evidence Code
section 791, which allows prior consistent statements to be
admitted into evidence only if they occur before any inconsistent
statements. As a result, the court erred when it admitted the
second half of the 20-minute video, allowing the prosecution to
rehabilitate Flowers’s credibility.
Assuming it was error to admit the second half of the
interview, it is not reasonably probable under People v. Watson,
supra, 46 Cal.2d at page 836, that defendant would have received
a more favorable result had the prior consistent statements been
excluded. (People v. Espinoza (2002) 95 Cal.App.4th 1287, 1317.)
From its acquittal of defendant of the robbery charge, it is
apparent the jury did not find Flowers entirely credible.
Defendant acknowledges that “[a]part from [defendant], Mr.
Flowers was the only witness able to describe the events inside
Raymond’s car leading up to the shooting” because Raymond was
dead and Richard was very intoxicated. In short, the trial pitted
Flowers’s account of the incident inside the car — that defendant
pulled out a gun and not money — against defendant’s — that he
initially pulled out money, not a gun. Defendant acknowledges
that by acquitting him of the attempted robbery count, “the jury
ultimately rejected the prosecution’s theory that [defendant] had
tried to rob Raymond, Richard, and Mr. Flowers . . . .”
We are not persuaded by defendant’s assertion that it is
reasonably probable the jury would have fully credited
defendant’s version of events if not for the admission of Flowers’s
24
prior consistent statements. Defendant testified he brought
insufficient funds and a gun to a drug deal, and that he intended
to re-negotiate the deal. He also testified Raymond was shot
during the struggle over the gun. From these facts, it is not
reasonably likely the jury would have acquitted defendant of
Raymond’s death.
4. Neither Defendant’s Miranda Waiver Nor His
Statement to Police Were Involuntary
Defendant next argues his waiver under Miranda v.
Arizona (1966) 384 U.S. 436 and subsequent statements to the
police were involuntary due to his youth, sleep deprivation,
isolation, and intoxication. According to defendant, the trial
court erred in admitting his post-arrest statements. The record
supports the trial court’s contrary conclusion.
a. Proceedings Below
Defendant was arrested at 8:00 p.m. on August 27, 2017.
He was interviewed by detectives at approximately 3:00 or
4:00 a.m. the following morning.16 Detective Garcia advised
defendant of his Miranda rights by reading from a preprinted
card. Defendant affirmed that he understood each Miranda
warning read to him but asked at the end of them, “Would I need
an attorney or?” Garcia responded, “That’s entirely up to you,
man. I can’t tell you.” After this exchange and without any
further discussion or questions, defendant began to tell the
detectives his version of events as we have described above.
Prior to trial, defendant moved to suppress his post-arrest
statements. At an evidentiary hearing, Garcia testified
16 The interview was video-recorded and the recording and
transcript were admitted into evidence and shown to the jury.
25
defendant “appeared to be resting” when he first entered the
interview room but defendant “did not appear to be impaired.”
Garcia did not understand defendant’s question “would I need an
attorney or” to mean he was in fact requesting one.17
Defendant testified at the hearing that he had just turned
20 at the time of the interview. On the day of his arrest, he drank
five or six Modelo beers, smoked five or six cigarillos of marijuana
throughout the day, and took one Xanax. His last meal before his
arrest was lunch at noon. He testified the room was cold and he
was tired so he dozed on and off while he waited approximately
six hours to be interviewed.
Defendant acknowledged he responded, “yes, sir” when
asked whether he understood each of the Miranda advisements,
but equivocated, “I never been through that before. So I
understood to a certain extent.” Defendant attested that the
detectives neither threatened him nor offered him leniency.
Although he “wasn’t all the way there,” he was not “totally
disoriented.”
The trial court and counsel engaged in a lengthy discussion
of the circumstances surrounding defendant’s interview, and the
trial court watched the video of his interview. The court found
the People proved the voluntariness of the statements and any
admissions or confessions made by defendant by a preponderance
of the evidence. The court concluded there was nothing deceptive
or misleading about Detective Garcia’s response to defendant’s
question “Would I need an attorney or?” The court also found
defendant was able to sleep despite the temperature in the room
17 Defendant does not contend his statements were
involuntary because they were made after he had invoked his
right to counsel under Miranda.
26
and thus he was not sleep deprived. As to his intoxication, the
court found it significant that considerable time had elapsed,
which would have allowed him to regain sobriety. Nor did the
court find defendant’s age to be a factor that would cause his
statement to be involuntary.
b. Analysis
We conclude, after reviewing the record and the video of
the interview in particular, that defendant understood and
knowingly and voluntarily waived his Miranda rights, and
voluntarily made the statements to the detectives.
Our Supreme Court recently explained review of a Miranda
challenge this way: “ ‘To safeguard a suspect’s Fifth Amendment
privilege against self-incrimination from the “inherently
compelling pressures” of custodial interrogation, the high court
adopted a set of prophylactic measures requiring law
enforcement officers to advise an accused of his right to remain
silent and to have counsel present prior to any custodial
interrogation.’ A suspect who has heard and understood these
rights may waive them. ‘[T]he prosecution bears the burden of
establishing by a preponderance of the evidence that the waiver
was knowing, intelligent, and voluntary under the totality of the
circumstances of the interrogation.’ This analysis requires an
evaluation of both the defendant’s state of mind and
circumstances surrounding the questioning. On appeal, we
accept the trial court’s factual findings and credibility
assessments if supported by substantial evidence. “ ‘ “ ‘ “We
independently determine from the undisputed facts and the facts
properly found by the trial court whether the challenged
statement was illegally obtained.” ’ ” ’ Where, as was the case
here, an interview is recorded, the facts surrounding the
27
admission or confession are undisputed and we may apply
independent review.” (People v. Leon (2020) 8 Cal.5th 831, 842–
843, citations omitted (Leon).)
Likewise, “[b]oth the state and federal Constitutions bar
the prosecution from introducing a defendant’s involuntary
confession into evidence at trial.” (People v. Linton (2013)
56 Cal.4th 1146, 1176.) “ ‘A confession is involuntary under the
federal and state guaranties of due process when it has been
extracted by any sort of threats or violence, or obtained by any
direct or implied promises, however slight, or by the exertion of
any improper influence. [Citation.] Coercive police activity is a
necessary predicate to a finding that a confession was
involuntary under both the federal and state Constitutions.”
(People v. Delgado (2018) 27 Cal.App.5th 1092, 1107.) As with
Miranda waivers, the People bear the burden of establishing by a
preponderance of the evidence the voluntariness of a confession.
(People v. Duff (2014) 58 Cal.4th 527, 551.)
Here, the following is shown by the video recording of
defendant’s interrogation: Defendant responded, “yes, sir” to
each of Detective Garcia’s Miranda advisements. He did not
appear disoriented or unable to understand the questions or
advisements given to him. To the contrary, defendant gave
cogent and coherent responses to the questions posed. The
detectives appeared calm throughout the interview and did not
attempt to threaten or coerce defendant. We conclude from our
independent review of the video recording that the People proved
by a preponderance of the evidence that defendant’s waiver of his
Miranda rights and his subsequent confession were freely and
voluntarily given.
28
Aside from the video evidence, substantial evidence
supports this conclusion. Detective Garcia testified defendant did
not appear disoriented and defendant admitted he was not
“totally disoriented.” He also confirmed the detectives neither
threatened him nor offered him leniency. Defendant does not
argue he was misled by Garcia’s response to his question
regarding needing an attorney.
Although defendant contends his Miranda waiver and
subsequent statements to the police were involuntary due to his
age, intoxication, sleep deprivation, and isolation, substantial
evidence supported the trial court’s contrary findings. At the
time of the interview, defendant was 20 years old, not a minor.
That the interview took place eight hours after his arrest
supported the trial court’s finding that defendant was not
affected by the five or six beers, the five or six cigarillos of
marijuana, and the one Xanax tablet he had taken throughout
the previous day. Defendant also conceded he was able to sleep
on and off while he waited in the interview room, despite the cold
and the isolation. “Moreover, defendant’s attempt to deceive the
officers in his initial interview indicates attentiveness and an
awareness of his circumstances.” (Leon, supra, 8 Cal.5th at
p. 844.)
Defendant’s demeanor and attempt to deceive the
detectives is at odds with his argument on appeal that he was
intoxicated, sleep deprived, isolated, and too young to voluntarily
waive his rights or confess to his crime. Under these
circumstances, there is sufficient evidence that defendant’s
Miranda waiver was knowing, intelligent, and voluntary. For the
same reasons, we reject defendant’s argument that his
29
subsequent confession was involuntary or coerced. (People v.
Jones (1998) 17 Cal.4th 279, 296.)
5. The Trial Court Properly Instructed the Jury on Self-
defense
Defendant contends the trial court erred in failing to
instruct the jury that CALCRIM No. 3470 applies to brandishing
a weapon as a component of the involuntary manslaughter
charge. The prosecution proceeded on the theory that defendant’s
involuntary manslaughter of Raymond arose from his act of
brandishing a firearm with criminal negligence.18 The court
instructed the jury with CALCRIM No. 3470, describing self-
defense in non-homicide crimes, and advised the jury that the
instruction applied only to the attempted murder and attempted
voluntary manslaughter charges. Defendant argues the court
erred in not also informing the jury CALCRIM No. 3470 applied
to the underlying offense of brandishing a weapon as part of the
involuntary manslaughter charge.
As a threshold matter, defendant has forfeited this
argument for failure to request clarification or a pinpoint
instruction on this defense. (People v. Lee (2011) 51 Cal.4th 620,
638; see People v. Webster (1991) 54 Cal.3d 411, 443.) Even if the
issue were not forfeited, we find no error.19 First, CALCRIM
18 The elements for involuntary manslaughter are: (1) the
defendant committed an underlying crime, in this case,
brandishing a firearm; (2) the defendant committed the
underlying crime with criminal negligence; and (3) the
defendant’s acts caused the death of another person. (CALCRIM
No. 580.)
19 Given our conclusion that no error occurred, we need not
address defendant’s ineffective assistance of counsel argument.
30
No. 3470 must be given when a defendant is charged with the
crime of brandishing a weapon. (See Bench Notes to CALCRIM
No. 983 [Brandishing Firearm or Deadly Weapon: Misdemeanor
(Pen. Code, § 417(a)(1) & (2))].) Defendant was not charged with
that crime and therefore the trial court was not required to
instruct the jury on CALCRIM No. 3470. Second, CALCRIM
No. 983, which was given to the jury and describes the crime of
brandishing a firearm, provides that the People must prove,
among other things, that the defendant did not act in self-defense
when he brandished the firearm. This instruction is sufficient to
apprise the jury that self-defense is available to defend against
the allegation of brandishing a firearm as part of an involuntary
manslaughter charge.
6. Cumulative Error
Defendant contends that cumulative error requires reversal
of his conviction. We have assumed (but not found) one error —
the admission of Flowers’s prior consistent statements — and
found that error to be harmless. Defendant’s cumulative error
claim fails.
7. Sentencing Issues
a. The Trial Court Properly Imposed the Firearm
Enhancement as to Count 1
Defendant argues the trial court erred when it imposed the
firearm enhancement under section 12022.5 to his sentence for
count 1, involuntary manslaughter. Section 12022.5, subdivision
(a) states that “any person who personally uses a firearm in the
commission of a felony” shall receive enhanced punishment
“unless use of a firearm is an element of that offense.” Defendant
argues his involuntary manslaughter conviction was based on his
31
brandishing of a firearm and thus, personal use of a firearm was
an element of his involuntary manslaughter conviction.
As defendant acknowledges, this argument has been
rejected by People v. Read (1983) 142 Cal.App.3d 900 (Read). The
Read court held, “Firearm use is not an element of the felony of
involuntary manslaughter; just as murder, this crime can be
committed in a variety of ways without using a firearm.” (Id. at
p. 906; accord People v. Quesada (1980) 113 Cal.App.3d 533, 540
(Quesada) [“The crime of manslaughter may be committed in
many ways without a firearm; the fact that this particular crime
was committed with use of a firearm does not make such use an
‘essential element’ of the offense”].)
Here, defendant brandished a firearm in committing
involuntary manslaughter, a felony. (§§ 417, subd. (a)(2), 192,
subd. (b).) As discussed in Read and Quesada, the felony of
involuntary manslaughter may be committed without the use of a
firearm. As such, we agree with these cases that the use of a
firearm is not an element of involuntary manslaughter.
Defendant’s sentence did not implicate dual use of a firearm, and
the enhancement was properly imposed as to count 1.
We reject defendant’s attempt to distinguish Read on the
ground that the current version of section 417 states two separate
offenses: one for brandishing “any deadly weapon whatsoever,
other than a firearm” under subdivision (a) and one for
brandishing a firearm under subdivision (b). This amendment to
section 417 makes no difference to the holdings in Read and
Quesada that involuntary manslaughter can be committed in
many ways, with or without a firearm, and use of a firearm is not
an element of the offense.
32
b. We Remand for Resentencing
By supplemental brief, the parties advised this court of
recent amendments to section 1170, subdivision (b) by Assembly
Bill No. 124 and Senate Bill No. 567.20 Effective January 1, 2022,
section 1170, subdivision (b)(6), now provides:
“Notwithstanding paragraph (1) [directing that the
court impose a sentence not to exceed the middle term of a
sentencing triad except as provided in subdivision (b)(2)],
and unless the court finds that the aggravating
circumstances outweigh the mitigating circumstances that
imposition of the lower term would be contrary to the
interests of justice, the court shall order imposition of the
lower term if any of the following was a contributing factor
in the commission of the offense:
“(A) The person has experienced psychological,
physical, or childhood trauma, including, but not limited to,
abuse, neglect, exploitation, or sexual violence.
“(B) The person is a youth, or was a youth as defined
under subdivision (b) of Section 1016.7 at the time of the
commission of the offense.
20 Three bills amending section 1170 — Senate Bill No. 567,
Assembly Bill No. 124, and Assembly Bill No. 1540 (2021-2022
Reg. Sess.) – were enacted and signed into law on the same date.
(Stats. 2021, ch. 731, § 1.3 , eff. Jan. 1, 2022; Stats. 2021, ch. 695,
§ 5 , eff. Jan. 1, 2022; Stats. 2021, ch. 719, § 2 , eff. Jan. 1, 2022.)
Senate Bill No. 567 incorporated the amendments proposed by
Assembly Bill Nos. 124 and 1540, and provided that if all three
bills amending section 1170 were enacted and became effective on
or before January 1, 2022, and Senate Bill No. 567 were enacted
last, then section 1.3 of Senate Bill No. 567 would become
operative. (Stats. 2021, ch. 731, § 3.)
33
“(C) Prior to the instant offense, or at the time of the
commission of the offense, the person is or was a victim of
intimate partner violence or human trafficking.”
Assembly Bill No. 124 also added section 1016.7, subdivision (b),
which provides that a “ ‘youth’ ” “includes any person under 26
years of age on the date the offense was committed.” (Stats 2021,
ch. 695, § 4.)
The parties agree the amendments to section 1170 apply
retroactively to defendant, who was sentenced to the high term of
10 years under section 12022.5, who was 20 years old at the time
the offense was committed, and whose case is not yet final. (In re
Estrada (1965) 63 Cal.2d 740.)
We agree with the parties that this matter must be
remanded for a resentencing hearing consistent with the
amendments to section 1170, subdivision (b). On remand, the
trial court may revisit all of its prior sentencing decisions.
(People v. Valenzuela (2019) 7 Cal.5th 415, 424-425 [“the full
resentencing rule allows a [trial] court to revisit all prior
sentencing decisions when resentencing a defendant”]; accord,
People v. Buycks (2018) 5 Cal.5th 857, 893 [“the ‘full resentencing
rule’ ”].)
DISPOSITION
The matter is remanded for resentencing. We otherwise
affirm the judgment.
RUBIN, P. J.
WE CONCUR:
BAKER, J. MOOR, J.
34